Following unsuccessful attempts to obtain planning permission for development on a Green Belt site which had permission for agricultural use only, the claimants constructed a dwelling house which was substantially completed in 2014. In 2021, pursuant to section 171B of the Town and Country Planning Act 1990, the local planning authority issued an enforcement notice for breach of planning control by material change of use, requiring cessation of residential use of the land, demolition of the building occupied as a dwelling and of incidental structures and of all paraphernalia which had been brought onto the land in connection with the unauthorised use. The first claimant appealed the notice, contending that the house itself, although not its use, was immune from enforcement action. The inspector appointed to the inquiry dismissed the appeal, on the basis that the principal form of development had been the making of the material change of use of the land, the construction of the building could reasonably be regarded as “associated works” and, since the purpose of the notice was clearly to remedy the breach of planning control by returning the land to the condition it was in before the breach had taken place, it was not excessive to have required the removal of the building. By an appeal and an application for statutory review, the claimants challenged the inspector’s decision, primarily on the ground that the inspector had erred in law in finding that the enforcement notice could require the removal of the dwelling house, not merely the cessation of its use, pursuant to the power in section 173(4)(a) of the 1990 Act, the principle laid down by the Divisional Court and applied in many subsequent cases (“ the Murfitt principle”) being limited to “associated” works rather than to the very building in which the unlawful use was taking place and which had generated that use.
On the application and the appeal—
Held, appeal allowed, statutory review granted, decision quashed and matter remitted to Secretary of State for redetermination. (1) The starting point to assess the limits or parameters of the power to require the restoration of land under section 172(3) of the Town and Country Planning Act 1990 was the statutory scheme, section 173(3) of the 1990 Act allowing the local planning authority to require the restoration of the land to its condition before the breach had taken place, but section 171B giving “operational development”, including the erection of dwelling houses, immunity from enforcement action four years after substantial completion. While the case law clearly established that the power to require restoration could include the removal of operational development, which could not be enforced against on its own because of section 171B, that principle was subject to limitations, including that it could not override or extend the statutory scheme. Thus, when a local planning authority was properly enforcing against a material change of use of land or premises which had entailed physical works to facilitate and support it, those works therefore being integral to the unauthorised use, as opposed to ancillary to or associated with that use, the statutory scheme allowed the enforcement notice to require the removal of such works, as well as the cessation of the use itself. However, the Murfitt principle was limited to “associated” works and did not extend to the very building in which the unlawful use was taking place and which generated that use. Accordingly, both the statute itself and the case law pointed to a limitation on the enforcement power where the operational development was itself the source of or fundamental to the change of use. Whether that limitation had been reached was a matter of fact and degree in each case (paras 22, 32–36, 39, 41).
(2) It followed that the local planning authority’s attempt to use an enforcement notice limited to material change of use, by reason of the fact that the operational development could no longer be directly enforced against, to achieve removal of the principal operational development (the dwelling house) had been contrary to, and thus had exceeded the power available to it in, the statutory scheme (paras 37, 39).
Douglas Edwards KC (instructed by Harrison Grant Ring) for the claimants.
Zack Simons and Nick Grant (instructed by Treasury Solicitor) for the Secretary of State.
The local planning authority, Buckinghamshire Council, did not appear and was not represented.